NO MORE NOTARIES NEEDED FOR COURT

This was noted by a post in November and now, as a reminder, CPLR 2106 was recently amended. The new version will go into effect on January 1, 2024 so it's time to update forms.

CPLR 2106. Affirmation of truth of statement.

The statement of any person wherever made, subscribed and affirmed by that person to be true under the penalties of perjury, may be used in an action in New York in lieu of and with the same force and effect as an affidavit. Such affirmation shall be in substantially the following form:

I affirm this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.

(Signature)

At this point, I intend to use the following forms, one for myself as attorney incorporating the new language, and the others for clients and non-attorneys incorporating the new language:

Attorney Form:

JON M. PROBSTEIN, who is an attorney duly admitted to practice before the State of New York and the Commonwealth of Massachusetts and who is filing this document in a court of law. affirms this ___ day of _____, _____, that the following is true under the penalties of perjury (penalties may include fine or imprisonment)

Client Form:  

XXXXX, being the plaintiff/defendant who is filing a document in this action or proceeding in a court of law, affirms this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true:

Non- Attorney Form:  

XXXXX, being an individual who is filing a document in this action or proceeding in a court of law on behalf of plaintiff/defendant, affirms this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true:

Venue Question:

The heading in an affidavit in the state of New York typically includes the state, county, and city in which the affidavit is made...the venue usually takes the form of “State of X, County of Y”. Since the requirement for notarization of affidavits and sworn documents in civil cases in New York state courts has been removed, this is not necessary but IMHO should be used in the Client/Non-Attorney Form until this is clarified by the courts, etc..

IT'S A WONDERFUL LIFE AND ARCH OBOLER

It's usually at this holiday time of year that I remember the endless showings of It's A Wonderful Life on all the local television stations in the mid 1970s. The story goes like this: due to a clerical error, the copyright to the film was not renewed and everyone was convinced that the film entered the public domain and TV stations everywhere could play it without having to pay anyone for the privilege. And what a joy it was to watch the film endlessly during the holiday season, because this was still at a time that Betamax/VHS was in its infancy.

By 1981/82, I was an entertainment lawyer, in that my clients were in the entertainment business.  I was retained by a New York specialty record label Nostalgia Lane and Arch Oboler, who was the creator, writer, director of the famous 1930/40s radio series Lights Out on NBC. Arch actually owned and properly copyrighted the scripts and licensed its use to NBC (although he had taped copies of the broadcasts, he did not claim to own the copyright to the taped copies of the broadcasts, just the scripts). In the late 1970s, Arch licensed to Nostalgia the right to use his copyrighted scripts to market the taped copies of the broadcasts on records and tapes, etc. but another competing company was claiming the taped copies of the broadcasts were in the public domain because NBC never filed or renewed any copyrights to the broadcasts. We commenced a copyright infringement action. The Defendant argued that Arch's radio shows were in no better a position than It's A Wonderful Life and it sure did appear that the industry was accepting this position: if a film/TV/radio broadcast did not have a copyright, anyone can copy it and market it just like It's A Wonderful Life.  

Many times, I spoke to Arch and even visited him at his home outside Los Angeles. He was something out of old Hollywood with plays on Broadway, TV, film (the first 3D movie was by Arch). He and I would discuss his case and the dilemma of other writers like him.  Arch argued that neither his radio series Lights Out or It's A Wonderful Life was in the public domain because the script is the original work and everything else derives from it (like Arch's radio shows, the film It's A Wonderful Life is a derivative work of the copyrighted story The Greatest Gift). Whether it is a movie or a radio show or a TV show, as a derivative work, the consent of the copyright holder of the original work script is required. And although a derivative work can be separately copyrighted, if that copyright expires or is otherwise thrown into the public domain, that does not affect the copyright of the original work script. 

It was a vexatious litigation and trial with the defendant raising some incredulous arguments as well as insisting on the validity of the It's A Wonderful Life defense; but the judge ruled that a derivative work still requires the consent of the underlying original work so that the failure to copyright or renew a derivative work will not affect the copyright of the underlying original work.  The judge even awarded Arch punitive damages. The press was made aware. Anyway, as a side note: on Defendant's appeal, the Second Circuit reversed Arch on the issue of punitive damages (but on remand, he wound up with the same amount in another form). And so Arch Oboler added one last achievement to his name as he will also be remembered for one more thing - his decision is still cited to this very day for the proposition that punitive damages are presumptively not available under the Copyright Act of 1976. Oboler v. Goldin, 714 F.2d 211, 213 (2d Cir. 1983) cited recently in Freeman v. Deebs-Elkenaney, 22-CV-02435 (LLS)(SN) (S.D.N.Y. Feb. 24, 2023). 

Oh yes, eventually the It's A Wonderful Life copyright mess was sort of cleared up and there are no more endless public domain showings (see The Nation - Whose “It’s a Wonderful Life” Is It Anyway?). On the other hand, Arch's works may now be in the public domain as he passed in 1987 and works, some of which were the subject of his litigation in 1980s, are freely available online.

BEING RELIEVED AS COUNSEL IS NOT A UNILATERAL AFFAIR

KALAMATA CAPITAL GROUP, LLC v. AJP REMODELING, LLC, 2023 NY Slip Op 51301 - Kings Co.  Supreme Court 2023:

"The instant action alleges causes of action premised upon a breach of a merchant cash advance contract.

Plaintiff Kalamata Capital Group, LLC is a corporation operating in New York (see NYSCEF Doc No. 30 ¶ 1). Defendants are companies organized or situated in Georgia as well as an individual (see id. ¶¶ 2-3). Allegedly, according to Plaintiff, Plaintiff and Company Defendants entered into an agreement whereby Plaintiff agreed to purchase all rights to Company Defendants' future receivables having an agreed upon value of $78,100.00 (see id. ¶ 6). Individual Defendant Julio Andres Penaranda Jr. personally guaranteed the contract, per Plaintiff (see id. ¶ 8).

Defendants' attorneys, Usher Law Group P.C., answered the complaint and responded to Plaintiff's discovery demands (see NYSCEF Doc No. 4-6, 12-18). They now move to be relieved as counsel (see NYSCEF Doc No. 76).

Defendants' attorneys claim that "undersigned counsel was advised that the Defendants no longer with to be represented by counsel" (NYSCEF Doc No. 76 ¶ 10). On June 20, 2023, a letter was sent by Usher Law Group P.C. to Defendants, purporting to confirm that in accordance with the latter's request, the firm would no longer be representing them, and "In order for this firm to be relieved as counsel for you[r] matter, please sign the attached affidavit and return it to us as soon as possible in the postage paid envelope enclosed" (NYSCEF Doc No. 78 at 2).

During oral argument the Court asked appearing counsel if he wished to provide an in-camera disclosure as to why counsel of record sought to be relieved. Appearing counsel declined the offer and provided no additional information.

II. Movant's Arguments

Movant law firm Usher Law Group cites case law for the proposition that "New York Courts have long held that an attorney mad [sic] end the relationship with a client at any time for good cause and on reasonable notice to the client. (See In re Dunn, 205 N.Y 398, 403 (1912)" (NYSCEF Doc No. 76 ¶ 12). Movant cites a provision of the New York Rules of Professional Conduct, "1.16 (b)(6)," that does not exist (see id. ¶ 13). This asserted provision purportedly "states that a lawyer may withdraw from representing a client if the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client or; (7) other good cause for withdrawal exists so long as it can be accomplished without material adverse effects on the interest of the client" (id.).

III. Discussion

Here, the Defendants' counsel seeks to be relieved. No opposition to Defendants' attorneys' motion has been filed. No appearance has been made in opposition.

In 1912, the Court of Appeals established that an attorney may terminate his relationship with a client in litigation "at any time for a good and sufficient cause and upon reasonable notice" (Matter of Dunn [Brackett], 205 NY 398, 403 [1912]).

"As a general rule, an attorney may obtain leave of court to terminate the attorney-client relationship at any time upon reasonable notice, for a good and sufficient cause, including the client's failure to pay legal fees and the failure to cooperate in his or her representation so as to cause a breakdown in that relationship (see 22 NYCRR 1200.0, Rule 1.16 [c]; Misek-Falkoff v Metro. Tr. Auth., 65 AD3d 576, 577 [2d Dept 2009]; Rivarderneria v New York City Health and Hosps. Corp., 306 AD2d 394, 395 [2d Dept 2003]; Tartaglione v Tiffany, 280 AD2d 543, 543 [2d Dept 2001]; Adler v Mitchell, 2022 NY Slip Op 50665[U], *2, 2022 NY Misc LEXIS 3194, *3 [Sup Ct, NY County, Jul. 25, 2022])" (Ventura v Choi, 2023 WL 4290358, *1 [Sup Ct, NY County, June 29, 2023, No. 805374/2016].) However, an attorney's right to withdraw as counsel is not absolute, and a sound reason must be provided why counsel should be allowed to withdraw (see Matter of Jamieko A., 193 AD2d 409 [1st Dept 1993]).

Conduct on the part of the clients rendering it unreasonably difficult to carry out the employment effectively is a valid ground for terminating the attorney-client relationship (see Rann v Lerner, 160 AD2d 922 [2d Dept 1990]). However, not every dispute between a client and an attorney warrants withdrawal (see Willis v Holder, 43 AD3d 1441 [4th Dept 2007]; LeMin v Central Suffolk Hosp., 169 AD2d 821 [2d Dept 1991].

The courts have an "inherent and statutory power to regulate the practice of law" (Matter of First Natl. Bank of E. Islip v Brower, 42 NY2d 471, 474 [1977]), and that power includes the authority to deny a motion to withdraw "because of the attorney's failure to show good and sufficient cause warranting withdrawal under the Code of Professional Responsibility"^[1] (J.M. Heinike Assoc. v Liberty Natl. Bank, 142 AD2d 929, 930 [4th Dept 1988]; accord Willis v Holder, 43 AD3d 1441 [4th Dept 2007]).

After an attorney has withdrawn it would be foolhardy to believe that the Defendant will easily be able to obtain a new attorney as "whatever the basis of permitted withdrawal, and certainly where it is based on insufficient merit of the claim or defense, prospective new counsel will, understandably, be reluctant to accept the representation" (Diaz v New York Comprehensive Cardiology, PLLC, 43 Misc 3d 759, 764 [Sup Ct, Kings County 2014]).

"The decision to grant or deny permission for counsel to withdraw lies within the discretion of the trial court" (McDonald v Shore, 100 AD3d 602, 603 [2d Dept 2012] [internal quotation marks and citations omitted]).

Moving counsel cites a nonexistent provision of the Rules of Professional Conduct. There is no paragraph (6) of subdivision (b) of Rule 1.16, as cited to by counsel. Rule 1.16 enumerates circumstances under which an attorney may ethically withdraw from representing a client. Subdivision (b) of Rule 1.16 provides:

(b) Except as stated in paragraph (d), a lawyer shall withdraw from the representation of a client when:

(1) the lawyer knows or reasonably should know that the representation will result in a violation of these Rules or of law;

(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client;

(3) the lawyer is discharged; or

(4) the lawyer knows or reasonably should know that the client is bringing the legal action, conducting the defense, or asserting a position in the matter, or is otherwise having steps taken, merely for the purpose of harassing or maliciously injuring any person.

(22 NYCRR 1200.0, Rule 1.16 [b] [emphasis added].)

Permissive withdrawal is governed by subdivision (c) of Rule 1.16:

(c) Except as stated in paragraph (d), a lawyer may withdraw from representing a client when:

(1) withdrawal can be accomplished without material adverse effect on the interests of the client;

(2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;

(3) the client has used the lawyer's services to perpetrate a crime or fraud;

(4) the client insists upon taking action with which the lawyer has a fundamental disagreement;

(5) the client deliberately disregards an agreement or obligation to the lawyer as to expenses or fees;

(6) the client insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law;

(7) the client fails to cooperate in the representation or otherwise renders the representation unreasonably difficult for the lawyer to carry out employment effectively;

(8) the lawyer's inability to work with co-counsel indicates that the best interest of the client likely will be served by withdrawal;

(9) the lawyer's mental or physical condition renders it difficult for the lawyer to carry out the representation effectively;

(10) the client knowingly and freely assents to termination of the employment;

(11) withdrawal is permitted under Rule 1.13(c) or other law;

(12) the lawyer believes in good faith, in a matter pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal; or

(13) the client insists that the lawyer pursue a course of conduct which is illegal or prohibited under these Rules.

(22 NYCRR 1200.0, Rule 1.16 [b] [emphasis added].) No paragraph in subdivision (c) of Rule 1.16 was referenced by moving counsel.

In addition to the Rules of Professional Conduct, CPLR 321 (b) (2) states, "An attorney of record may withdraw or be changed by order of the court in which the action is pending, upon motion on such notice to the client of the withdrawing attorney, to the attorneys of all other parties in the action or, if a party appears without an attorney, to the party, and to any other person, as the court may direct."

Furthermore, when an attorney seeks to be relieved of counsel, moving papers must contain specific allegations in order to be relieved as counsel; conclusory statements are not sufficient (see Kramer v Salvati, 88 AD2d 583 [2d Dept 1982]). In Kramer, the Appellate Division found that the moving papers of plaintiffs' attorneys seeking to be relived of their responsibilities based their application on "various differences," but there was "no specification whatsoever of this conclusory assertion" (id. at 583). Supreme Court's denial of the attorneys' motion was sustained.

It must be emphasized that when an attorney undertakes to represent a defendant in a civil action, there exists a presumption that the representation will continue in good faith throughout the course of the litigation (see Moustakos v Bouloukos, 112 AD2d 981 [2d Dept 1985]; Blondell v Malone, 91 AD2d 1201 [4th Dept 1983]). An attorney cannot unilaterally terminate a relationship with clients simply by failing to perform services expressly or impliedly authorized by them (see Leffler v Mills, 285 AD2d 774 [3d Dept 2011]). One should not enter into a client representation with the aforethought that the attorney can earn a quick fee and then let the client loose. "As the saying goes, `in for a penny, in for a pound' (Edward Ravenscroft, The Canterbury Guests; Or, A Bargain Broken, act v, scene 1 [1695])" (People v Graves, 163 AD3d 16, 22 [4th Dept 2018]).

Here, Defendants' counsel's only explanation for being discharged was a conclusory one-sentence statement: "In June of 2023 undersigned counsel was advised that the Defendants no longer with [sic] to be represented by counsel and forwarded a letter confirming the same." The sentence appears to convey that the Defendants forwarded a letter confirming a desire not to be represented by counsel. Actually, counsel prepared an affidavit for the individual Defendant to sign both on his own behalf and on behalf of Company Defendants. The affidavit was sent along with a cover letter. The affidavit was never signed and returned by the individual Defendant. (See NYSCEF Doc No. 78.)

Since no details were provided by counsel, this Court is left in the dark as to why the breakdown in the attorney-client relationship occurred, whether Defendants truly wished to have counsel relieved, and whether they understood the consequences of being without an attorney. One would presume that if they wished counsel to no longer represent them, they would have signed the affidavit and returned it. At a minimum, they would have sent something in writing acknowledging their intentions. However, there is nothing from them.

This does not mean that as a sine qua non a client must execute a writing to memorialize a desire to have counsel relieved as their attorneys. But when counsel offers nothing more than an enigmatic one-line statement without details and without an offer to explain the situation in camera, and despite having the opportunity to sign something to the effect that they don't want the attorneys representing them, the clients do not return it executed, this raises a question on the Court's part as to what has transpired. This Court cannot acquiesce so easily to rendering parties to litigation, especially Defendants in a breach of contract case, without legal representation.

Relieving oneself of counsel is not a unilateral affair. Counsel must show good cause to be relieved. Here, Defendants' counsel has not demonstrated good and sufficient cause with sufficient allegations. Present are none of the above cited reasons for permitting dissolution of the attorney-client relationship — such as a failure to pay legal fees, a failure to cooperate, client actions rendering it difficult to carry out the representation, lack of a meritorious defense, illegal conduct taking place, or the client proposes to undertake illegal conduct. The present circumstances, including the lack of an in-camera explanation and the non-return by Defendants of the pre-written affirmation, prompt this Court to decline to exercise its discretion to relieve counsel from representation.

IV. Conclusion

Accordingly, it is hereby ORDERED that Defendants' counsel's motion to be relieved is DENIED.

[1] The Code of Professional Responsibility was replaced by the Rules of Professional Conduct in 2009."